Obesity: How Social Security Evaluates Obesity in Determining Whether an Adult is Disabled

The Social Security Administration defines obesity as “a complex, chronic disease characterized by excessive accumulation of body fat.” SSR 02-1p. Medical criteria have been established to determine whether an individual is overweight based upon their body mass index (BMI). Social Security uses this criteria to help determine whether an individual is obese, but also uses other evidence in determining obesity.

Social Security originally had a listing specifically for obesity; however this listing was removed in 1999 because Social Security felt that it did not represent a degree of functional limitation that would prevent an individual from working. Despite removing obesity as a listing, Social Security still evaluates obesity in determining whether an individual is disabled.

Obesity will be considered in four different parts of the evaluation process. It will be considered in determining:

1. Whether the individual has a medically determinable impairment;
2. Whether the impairment is severe;
3. Whether the impairment meets or equals a listing; and
4. Whether the impairment(s) prevent the individual from doing past relevant work or any other work.

Medically Determinable Impairment

When determining whether an individual’s obesity constitutes a medically determinable impairment Social Security will look at the evidence in the record. If the evidence in the record includes a diagnosis of obesity then Social Security will accept this diagnosis unless there is other evidence in the record to the contrary. When the evidence in the record does not include a diagnosis, but does include consistent notes about high body weight or BMI the Social Security Administration will use its own judgment to determine whether obesity exists.

Impairment is Severe

Obesity is considered to be severe when it alone or with other conditions, significantly limits an individual’s physical or mental ability to do basic work activities. If it is a slight abnormality that has no more than a minimal effect on the individual’s ability to do basic work activities, than the impairment is not severe. There is no specific BMI that equates with a finding of severe or not severe, instead it is an individualized assessment of the impact of obesity on an individual’s functioning.
If an individual’s obesity is determined to be severe, then the Social Security Administration may find that the obesity medically equals a listing.

Impairment Meets or Equals a Listing

Obesity may be a factor in both meeting and equaling a listing. Since there is no longer a listing for obesity you cannot meet a listing without having another condition that either, by itself or in combination with obesity, meets the requirements of a listing.
The Social Security Administration can find an individual’s obesity to be medically equivalent or equal a listed impairment. For example if the obesity is of such a level that it results in the inability to ambulate effectively then it may equal listing 1.02A. Obesity can also be combined with other impairments to equal a listing.

Whether the Impairment(s) prevent the individual from doing past relevant work or other work obesity can cause limitation of function. When determining whether obesity by itself or in combination with other conditions prevents an individual from returning to their previous work or other work the Social Security Administration will determine an individual’s residual functioning capacity. To do this an assessment will be made of the effect obesity has upon the individual’s ability to perform routine movement and necessary activity within the work environment. Social Security will then use this information to determine whether an individual can return to their previous work or do any other work.

Even though obesity is no longer a listing it is still a very important factor to be evaluated in determining whether an individual is disabled. Obesity can make the difference between a favorable and unfavorable determination, so if you suffer from obesity it is important to mention it in your application.

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The Patient Protection and Affordable Care Act: What Health Care Reform Means to You

On March 23rd, 2010, President Obama signed into law the Patient Protection and Affordable Care Act, designed to reduce health care costs for American families and small businesses, expand coverage to millions of Americans and end certain practices of insurance companies.

Although some provisions of the act do not become effective until 2014, many take effect immediately.

For example, certain persons with pre-existing conditions can get coverage this year.
If you have been uninsured for 6 months and have a pre-existing condition, you will gain access to health insurance that was not previously available to you. A new program known as the interim high-risk pool will provide insurance for Americans who are uninsured because of a pre-existing condition through a temporary subsidized high‐risk pool, to provide temporary protection for people with pre-existing conditions until 2014, at which time insurance companies can no longer deny coverage based on your health.
Effective 6 months after enactment (approximately September, 2010):

• No discrimination against children with pre-existing conditions. The law prohibits new health plans from denying coverage to children with pre‐existing conditions. Beginning in 2014, this prohibition would apply to all persons.

• Insurance companies are banned from dropping people from coverage when they become sick.

• New health plans must allow children up to age 26 to remain on their parents’ insurance policy (at their parents’ choice). Both married and unmarried dependents qualify for this dependent coverage. Beginning in 2014, children up to age 26 can stay on their parent’s employer plan even if they have an offer of coverage through their employer.

• Health insurance companies are prohibited from placing lifetime caps on coverage. Annual limits will also be restricted, and will be prohibited all together by 2014.

• New private plans must cover preventative services with no co-payments, and preventive services must be exempt from deductibles.

• Consumers in new plans must be ensured access to an effective internal and external appeals process to appeal decisions by their health insurance plan.

• New group health plans are prohibited from establishing eligibility rules for health care coverage that have the effect of discriminating in favor of higher wage employees.


Other provision that become effective this year:

• The act provides a $250 rebate to Medicare Beneficiaries who hit the “donut hole” (the gap in Medicare prescription drug coverage). Beginning 2011, there will be a 50% discount on prescription drugs in the donut hole, which is to be completely closed by 2020.

• There is help for early retirees through the creation of a temporary re-insurance program (until the Exchanges are available) to help offset premiums for retirees ages 55-64.

• States will be provided aid to establish offices of health insurance consumer assistance in order to help individuals with the filing of complaints and appeals.

Beginning in 2011:

• Copayments for preventive services under the Medicare program are eliminated, and preventive services are exempt from deductibles.

• Individual and small group plans are required to spend 80 percent of premium dollars on medical services (85% for larger group plans). Insurers who do not meet this threshold must give rebates to policyholders.

• Increased funding for community health centers will allow for nearly double the number patients served by the centers over the next 5 years.

• New investments will be implemented to increase the number of primary care practitioners, including doctors, nurses, nurse practitioners, and physician assistants.

• Health insurance companies will be required to submit justification for all requested premium increases, and insurance companies with excessive or unjustified premium exchanges may not be able to participate in the new Health Insurance Exchanges.

Nothing in the health reform bill requires anyone to change their existing coverage. If you like the health plan you have, you will be able to keep it. There is also no “employer mandate” in the legislation, so your employer is not required to provide you with medical insurance, but those who do may be eligible for tax incentives.

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Social Security Disability: Myths About The Social Security Claims Process

Applying for Social Security disability benefits can often be an intimidating and time-consuming process. Understanding how the Social Security disability system works can make the difference between winning or not winning the disability benefits and back pay to which a person is entitled. To that end, following are some common Social Security disability myths and misconceptions.

Myth: The Social Security Administration denies everyone the first time they apply for disability.

This is absolutely not true! The Social Security Administration has no social security law (regulation, policy, or formula) that influences the disability system in such a way that every first application for social security disability benefits is automatically denied. It is easy to see, however, why people would believe that such a policy exists. Nationwide, about seventy percent of all disability claims are denied on the first application filed. Seventy percent is not a small number! Your social security lawyer can be helpful to prevent unnecessary denials. Because of the amount of paperwork that associated with these claims, often times, claimants are denied because they do not comply with request for documentation by the Social Security disability reviewer. It is the role of the attorney to ensure that this does not occur.

Myth: The Social Security Administration will deny you a certain number of times before you are approved.

Also not true! Just as social security disability cases are not automatically denied on the very first application, neither are thy denied a certain number of times before they are approved. But with seventy percent of initial claims being denied, what can you do to improve the chances of getting approved? Many people simply file applications over and over again, hoping to be approved. This is not the answer. If you continue to file and initial application for disability benefits, and continue to get denied at first stage, you are denying yourself the right to having those decisions appealed. It is the role of the disability lawyer to make sure that you follow the appeals process up to the highest level of appeal. The social security attorney is also responsible for making sure that you do so in a timely manner, meeting all deadlines.

Myth: The best way to appeal a Social Security claim denial is to file a brand new application.

No. In fact, filing a new claim is often the worst thing you can do. Why? Remember that almost seventy percent of initial applications are denied. Most disability claimants will be denied on the initial application. Repeated new applications will most likely be denied, and for the same reasons. Further, historically, and statistically, if a disability case is not approved at the initial claim level, it will probably also be denied at the reconsideration level (in some states, the reconsideration step has been suspended as part of a test project) and eventually have to be heard by an administrative law judge to be approved for disability benefits. As noted above, a social security disability claim, however, will never get that far in the process if a claimant continually files new applications instead of pursuing right to appeal.

In short, to improve your chances of winning your disability case, you should:
1) Follow the appeals process; and
2) Find representation.

Myth: Certain medical conditions or mental health problems can get you automatically approved for benefits.

The answer to this is both yes and no. Certain impairments are singled out and specified in the Social Security Administration’s Impairment Listing Manual. Claimants, who have listed medical problems at the level specified in the manual, can be approved for benefits somewhat easier than those who do not. The disability evaluation process, however, even for listing level impairments, is never automatic. All claims are evaluated according to the medical evidence; gathered first by the Disability Determination Services at the initial claim and reconsideration levels, and then by a staff attorney or Judge at the hearing level. Claims are decided by the information held by medical providers.

It is important to remember, therefore, that disability claimants should seek regular medical treatment throughout the entire time their claim is pending. This is to ensure proper documentation for evaluation purposes. Disability cases in which the medical evidence is scant and doctor visits are sporadic, will, generally, have little chance of approval. Conversely, claimants who get regular medical care will usually have more solid cases and a better chance of obtaining social security disability benefits.

Myth: You cannot get Social Security Disability if you have used drugs or alcohol.

This is not true. It will depend on the extent of the use and how recent the use was. Currently, it is not possible to receive disability benefits based solely on addiction. But, whether such use will affect a claimant’s eligibility for benefits depends on materiality. If a claimant’s drug or alcohol abuse is found to be material, in other words relevant, to the case, the case will not win.

For example, a claimant applies for disability based on liver dysfunction and hepatitis. The claimant also has a history of alcohol abuse, some of it recent. Is the claimant contributing to their own illness by abusing alcohol abuse? Are the claimant’s symptoms due to alcohol abuse or drug abuse or to their impairment?

If the claimant’s liver damage were so pronounced that ceasing alcohol use completely would make no difference to the claimant’s medical condition, then alcohol abuse would be immaterial, or irrelevant, to the case. Conversely, if ceasing alcohol use would result in medical improvement, then the alcohol abuse is material to the disability case and the claim would be denied. Simply put, Social Security will not pay benefits to claimants whose disabling conditions are brought on and exacerbated by, drug and alcohol abuse. Claimant’s who have a history of abuse but who are not currently using substances should carefully review their medical records before filing for disability.

Further, medical doctors and mental health professionals will often indicate “suspected use” in their treatment notes. Such indications, proven or not, can have a damaging effect on a disability case. Claimants, whose disabling conditions are psychiatric in nature, should especially heed this since mental cases are more likely to be denied when substance abuse is involved.

Each case is different but it is certainly true that the applicant has a better chance of obtaining benefits if they have maintained at least six month of sobriety.
You may have many questions as the process and or perhaps why you are being denied. It is advisable that you contact a disability lawyer to help you navigate this process. While there are many myths about the Social Security claim process that are untrue, the process does include a fair amount of rules and regulations to navigate that are better suited for a social security attorney.

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Preparing a Strong Seizure Case for Disability Benefits

There are approximately 2.5 million individuals in the United States that have some form of epilepsy. Epilepsy is a chronic neurological condition. The brain is able to control how the body moves by sending out small electrical signals through the nerves to the muscles. Seizures occur when abnormal electrical discharges from the brain change the way the body functions. There are more than 29 different seizure disorders, and not all of them result in convulsions. In fact, seizures are experienced differently from person to person. Some individuals have only slight shaking of a hand and there is no loss of consciousness. Others do not have any shaking at all, but may experience brief moments where they lose touch with their surroundings and appear to stare into space. However, others may have total loss of consciousness and exhibit violent shaking of the body and even incontinence.

Many individuals with chronic seizure disorders are able to control seizures with medications and are able to function very well. However, if an indivual who takes medicaitons as directed, but continues to experience seizures that prevent him/her from working, they may qualify for Social Security disability benefits.
When evaluating a seizure case for disbailty benefits, Social Secuity decision makers check to see if an indivual is treating with a neuolgist, and they check for complaince with all medicaitons and recommendations by the doctor. They check to make sure the seizures are not a cause of drug or alcohol abuse, and then lastly check if the seizures are occurring despite medication. Often times, when a seizure occrs, an individual will go to the emrgnecy department and have blood work, an MRI, a CT scan or an EEG test administered. Sometimes, seizure activity can be seen on these tests, but other times the tests will be normal despite the fact a seizure has occurred. Therefore, it’s difficult to present objective evidence to Social Security which can prove that seizures are actually occuring. In order to prepare a strong case for disability benefits, it is important to go to the hosotial after every seizure and report the seizures to your neuorligist so there is a record and also so that medications can be adjusted to better control the seizures. Also, keeping a seizure diary which tracks the occurance of seizure and includes witness statments may also strengthen a case. The diary should include the date and time of the seizure, and what happened. For example, document if there were convulsions, loss of consciousness, incontinence, or injury.

Though the seizure itself may only last a few seconds, there are residuals from a seizure that can be debilitating and last hours or days. For example after a seizure, an individual may feel very sick or tired, or need to sleep. If a serious injury occurred during convulsions, they may need medical attention. These residuals should also be documented in the diary and/or medical notes, and it should be recorded approximately how long the residuals lasted.

Overall, seizure disorders are difficult to prove in a disability case because there are not always objective findings that prove they exist. Regular treatment and documentation by a specialist is of utmost importance in proving this disorder. Statements from your specialist about how often seizures, and the length of time residuals last which preclude the ability to function, are also vital to proving the case.


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Assessing Credibility in Social Security Disability Hearings

Social Security Regulations require claimants to prove they are disabled as a “result of anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”

A symptom is an individual’s own description of his or her physical or mental impairment. SSA regulations make it clear that “statements about your pain or other symptoms will not alone establish that you are disabled.” So questions often arise as to how to prove disability in instances when subjective complaints such as pain, fatigue, shortness of breath, weakness, or nervousness prevent you from working, or when you can’t afford to go the doctor, or pay for medicines.

Make no mistake; SSA is assessing your credibility at every stage of the process. Nearly every file contains the opinions of medical and administrative personnel as to whether a claimant’s allegations are credible. But nowhere does that assessment become more apparent than at the hearing stage, when a judge has a chance to read the file and meet with the claimant face to face.

Adjudicators must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the pain or other symptoms. Once that has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit ability to do basic work activities.

SSA acknowledges that objective medical evidence alone cannot always prove or disprove an individual’s symptoms exist at the level of severity alleged. So adjudicators are required to “make every reasonable effort to obtain available information that could shed light on the credibility of the individual’s statements.”

In general, SSA defines “credibility” as “the extent to which an individual’s statements about symptoms can be relied upon as probative evidence in determining whether the individual is disabled.”

In evaluating credibility, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual’s statements. The assessment cannot be based on an intangible or intuitive notion. It must be grounded in evidence and articulated in the decision.

Allegations concerning the intensity and persistence of pain or other symptoms may not be disregarded solely because they are not substantiated by objective medical evidence.
Consistency of a claimant’s statements with later statements, and with statements and observations of others all come into play. Medical treatment history must be considered.

But what if you can’t afford to go to the doctor, or pay for prescriptions?

SSR 96-7p provides insight, stating that an adjudicator “must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment. The adjudicator may need to re contact the individual or question the individual at the administrative proceeding in order to determine whether there are good reasons the individual does not seek medical treatment or does not pursue treatment in a consistent manner. The explanations provided by the individual may provide insight into the individual's credibility. For example:

• The individual's daily activities may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding physical or mental stressors that would exacerbate the symptoms. The individual may be living with the symptoms, seeing a medical source only as needed for periodic evaluation and renewal of medications.

• The individual's symptoms may not be severe enough to prompt the individual to seek ongoing medical attention or may be relieved with over-the-counter medications.

• The individual may not take prescription medication because the side effects are less tolerable than the symptoms.

• The individual may be unable to afford treatment and may not have access to free or low-cost medical services.

• The individual may have been advised by a medical source that there is no further, effective treatment that can be prescribed and undertaken that would benefit the individual.

• Medical treatment may be contrary to the teaching and tenets of the individual's religion.”

The Seventh Circuit, in a recent case, held that the judge must not draw any inferences about a claimant’s condition from failure to follow a treatment plan or infrequent treatment unless the judge has explored the claimant’s explanations as to the lack of medical care. The Court cites inability to afford treatment a one reason that can ‘provide insight into the individual’s credibility.’ So a judge must question a claimant about lack of treatment or noncompliance, and failure to do so may be grounds for appeal.

The lesson for claimants, then, is to make sure these facts get into their records. Tell your doctor if you cannot afford the medications prescribed to you, or if you do not have insurance and cannot seek treatment as often as you need to. In the end, the key to credibility is consistency, but where the facts are inconsistent, some reasonable explanation needs to be offered.

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Can My Prior Claim Be Reopened?

Generally, initial determinations made on your claim are subject to your right to appeal, usually within 60 days. However, in certain instances, a decision which would otherwise be final and binding may be reopened or revised.

SSA may reopen a decision on its own initiative, or, a claimant may request that a previous determination be reopened. In either situation, if SSA decides to reopen a determination or decision, it may revise that determination or decision.

SSA regulations set forth the conditions under which a previous determination may be revisited. Although the regulations sound as if a party to a claim may simply request a reopening and it will be done, it is generally well established that whether or not to reopen a claim is left to the discretion of the Administration.

According to 20 C.F.R. §404.900, an Initial Determination is one made about your entitlement or your continuing entitlement to benefits or about any other matter that gives you a right to further review. Regulations differentiate between actions that are deemed initial determinations and those actions deemed not to be initial determinations.

Administrative actions that are not initial determinations may be reviewed by SSA, but are not subject to the administrative review process, and are not subject to judicial review. Denying a request to reopen a determination or a decision is considered such an action.

Therefore, denial of a request to reopen is not grounds for appeal. Nevertheless, regulations do provide for three conditions for reopening an otherwise closed case. The most generous provision allows for reopening a case for any reason within twelve months of the initial determination. Again, the refusal by SSA to reopen a case within twelve months for any reason is not subject to appeal.

The second listed condition listed is within four years (two years for SSI), for good cause. Good cause includes new and material evidence, clerical errors in computations of benefits, or evidence that, on its face, was clearly construed in error. A change in the law is not considered good cause.

Finally, a case may be reopened at any time if the determination was induced by fraud or similar fault. The regulation goes on to list what it means by similar fault, and includes instances related to death, convictions, and other clerical errors.

Most often, the request for reopening situation arises when a claimant has had a previous claim denied, but files a new claim that is subsequently approved. The question then becomes whether the previously denied claim can be reopened, effectively granting a claimant more back pay. Because of the huge backlog and the slow pace at which SSA adjudicates claims, it often happens that the request for reopening cannot be made for any reason under paragraph 1, and the good cause provisions of paragraph 2 come into play, ostensibly allowing for reopening within 4 years if the provisions can be met. As a matter of practice, the most common good cause would have to do with new and material evidence that relates back to the period of the initially denied claim.

In the end though, a claimant may not demand reopening under any of these provisions. It may only be requested. And, if denied, the decision may not be appealed.


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Disability Benefits and Mental Retardation

To win a claim for disability benefits, a claimant applying for social security benefits must have a severe medically determinable condition.

Listing 12.06 for mental retardation indicates below-average intellectual functioning as a medically determinable condition. The listing defines mental retardation as “significantly sub-average general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period…[or before age 22].”
To determine whether or not an individual applying for social security benefits has impaired intellectual functioning severe enough to be disabling, standardized tests for measuring intelligence quotient (IQ) and/or evidence that the claimant is incapable of taking care of one’s own personal needs may be required to establish disability per the listing.

To win disability benefits per listing 12.06, an IQ test will likely be required. Standardized intelligence tests such as the Wechsler Adult Intelligence Scale are used to determine intelligence quotient. These tests should be administered and interpreted by a psychologist or psychiatrist who is qualified to evaluate the exam.
If an IQ test is not feasible given the claimant’s severely limited mental functioning, then the severely diminished level of functioning must be established through evidence that indicates claimant is unable to care for such personal needs as using the bathroom, dressing, and bathing. In this instance, medical reports and teacher evaluations describing an individual’s diminished intellectual, social and physical functioning will be helpful to establish the existence of a severe impairment.
When an IQ test is feasible, any claimant with an IQ of 59 or less will satisfy the listing and therefore be eligible for disability benefits. If the individual’s IQ is between 60 and 70, the claimant can satisfy the listing and win disability benefits by proving he or she has an additional mental or physical impairment that causes significant work-related limitations. If this is not the case, the claimant will have to establish “marked” difficulties in at least two of the following parameters:

a. Ability to perform activities of daily living
b. Ability to maintain social functioning
c. Ability to maintain concentration, persistence or pace.

If only one of the above is satisfied, the claimant can still satisfy the listing if he or she experiences extensive and repeated episodes of decompensation.

It is important to note that “marked” means “seriously limited, but not totally precluded.” Further, a “repeated episode” of decompensation lasting for “an extended period,” is generally four or more episodes within a year, each lasting two weeks or more.


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The Pursuit of Social Security Disability Benefits in A Culture of Denial

In the recent months, high denial rates among those applying for Social Security benefits, has been the topic of immense concern. Investigations into denials of specific cases have caused some to call the Social Security Administration's strategies a "culture of denial." With only a 30-40% approval rate at Initial Application, this doesn't seem far from the truth. A report published by CBS news stated that most people do not bother to appeal a denial the first time they are disapproved for benefits. Almost two-thirds of all applicants give up after their first denial, meaning millions of Americans who paid into the system and quite possibly were deserving of benefits, never received assistance. Most of those that did continue fighting for benefits were faced with long wait times- lasting over 1 year, and often times, further denials.
After a two-month investigation, the CBS report called the denials part of a "system whose own standards have been called into question." The Social Security Administration's recent budget cuts and high staff turnover has resulted in longer back logs of cases, medical experts who are rendering opinions outside their specialties and inexperienced examiners being pressured to disapprove claims in order to keep costs down.
SSA Commissioner Michael Astrue commented that "it's a very tough standard…and you can argue whether that should be the standard or not, but I'm stuck with that." However, feedback from former employees of the Social Security Administration has caused a great deal of distress and apprehension among the disabled. Trisha Cardillo, a former Social Security employee who reviewed over 200 disability cases a month out of Ohio, has stated, "We're failing the disabled on a very large scale." She added that "there were a lot of times when I was fighting with management because I wanted to approve a claim…and I had to go through so many steps and - jump through so many hurdles to do that, it just seemed ridiculous." Cardillo explained that in essence, there is a "quota system" in which "each state has different numbers and they know that a certain percentage of people, once denied, will never file an appeal."
A prime example of the results yielded by this toughened standard is Mr. Robert Veneziali' case. He is a 38 year old applicant for disability benefits who is diagnosed with rapidly progressing Multiple Sclerosis. After applying for benefits, he was turned down and told that his case could be re-examined in another 18 months. Desperate for assistance, he turned to his congressman Rep. John Hall. Hall called for a federal investigation and stated that the treatment of people like Veneziali was "unconscionable." Another case we are dealing with in California involves a claimant who is diagnosed with end stage kidney disease, waiting for dialysis. This claimant has pages of supportive records and statements from his Kidney Specialist. However, his case was initially evaluated and denied by state agency reviewers who were not even doctors. Then, the case was reviewed and denied by a Social Security medical expert who was not a specialist in kidney diseases. Finally when it reached the hearing level, it was reviewed by staff at the San Diego Office of Disability, Adjudication and Review, and was denied an immediate award despite his dire, terminal condition.
With the assistance of congressional representatives who are voicing concerns over long wait times and high denial rates, perhaps the system that Social Security is currently operating under will be improved. Recently, due to concerns expressed by the public and Members of Congress, the Administration suspended some of their processes that were creating difficulties for claimants at the hearing level. After more than 500 comments were submitted criticizing the proposed rule that had put restrictions on the submission of evidence, Commissioner Astrue officially suspended that rule. This leaves open the possibility that with enough public concern and the assistance of our elected officials, the Social Security Administration will make changes to better the system and eventually this "culture of denial" will be transformed.


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Proving a Disability Based on Depression

It is estimated that today, approximately 19 million American adults are currently living with Major Depression. Major depression can be a debilitating disease that requires treatment in the form of medicine and therapy to resolve. For many Americans, depression affects their ability to function day to day and prevents them from holding a steady job. When trying to obtain Social Security Disability benefits due to Major Depression, it is important to know the criteria that Social Security uses to determine whether an individual’s depression is severe. This article will explain the evaluation process that Social Security decision makers use to evaluate a claimant’s case, and it will recommend ways to build up a strong case when applying for benefits.


What Social Security is Looking For?


Unlike physical impairments, where it’s easy to prove a disability using x-rays or blood tests, mental impairments are largely based on the subjective complaints an individual makes to their mental health doctors. Therefore, an individual alleging a disabling mental condition must be seeing a mental health professional. One of the first things Social Security looks for when evaluating a claim for benefits for depression is treatment records. A lack of treatment implies that the person is able to manage the depression by him or herself, and therefore the condition is not severe enough to prevent them from working. Missed appointments or gaps in the records tend to show that the individual either does not need help or is contributing to their impairment by not complying with proper treatment.

In the records themselves, Social Security looks for symptoms. For Major Depression, there must be consistent records stating that 4 of the following severe symptoms have persisted despite treatment: anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, or hallucinations, delusions, or paranoid thinking.

Once it is determined that at least 4 of the above symptoms exist despite ongoing treatment, Social Security checks to see if the symptoms have lasted or will likely last at least 12 months.

Next, Social Security evaluates the impact these symptoms have on an individual’s ability to function. Though the symptoms may exist, they may be mild and therefore a person can potentially work despite the symptoms being present. However, if the symptoms are very severe, they would probably prevent the person from working at any job.

At this step, Social Security needs the help of a mental health expert to help determine the severity of the symptoms. A treating psychologist or psychiatrist is in the best position to provide an opinion as to the level of impairment their patient’s symptoms are causing. Specifically, Social Security is interested on how much an individual’s depressive symptoms interfere with their ability to perform activities of daily living, how much interference there is with normal social functioning, how much the depression effects a person’s ability to concentrate, persist or keep a working pace, and how many episodes of decompensation the depression has caused. If a treating doctor does not provide information on the severity of the claimant’s depression, one of Social Security’s medical examiners will provide such an opinion based on either an examination or a review of the records.


Presenting a Strong Case


Of course the most important part of proving a case for disability to be able to present treatment records. Not being able to afford treatment is not an excuse because there are free clinics and county mental health facilities that can assist those in dire financial shape. All claimants should have records to prove that they in fact do have a diagnosis of major depression.

It is important to discuss the symptoms of your depression with your doctor so that these symptoms can be written in your record.

To prove that the symptoms severely impact your ability to work, a statement from your doctor is necessary. Because a person’s treating doctor is most familiar with their case, that doctor’s opinion is usually given the most weight and therefore it’s vital to proving the case for disability. The opinion of the treating doctor can be in the form of a short narrative or can be provided as part of the doctor’s progress notes.

Social Security evaluators also look for in-patient stays at mental health facilities to determine if the individual shows signs of decompensation or an inability to function outside a highly structured living arrangement.

Another tool used to determine the severity of a claimant’s depression is their GAF, or Global Assessment of Functioning score. The GAF tells how well an individual functions in their life. Scores of less than 50 tend to show that an individual is below the normal level social functioning and has a significant impairment in this area.

Social Security red flags, which are often used as the basis for denials, are drug use and non-compliance. Claimants who use drugs or alcohol when they have depression are often denied because the effects of the substance cannot be distinguished from the effects of the mental impairment. Therefore, it is viewed as though the claimant is contributing to their disability. It is advantageous to have sustained sobriety from drugs and alcohol for at least 6 months before applying for disability benefits due to depression. Also, claimants who fail to take their medications are considered to be contributing to their impairment. Such cases are often denied because it is presumed that with proper medical management, the depression would resolve.


Therefore, to strengthen a case for disability based on depression, the following should be part of the record: consistent visits with the mental health doctor which state the symptoms of depression, compliance with medications, sobriety from street drugs and alcohol, and a supportive statement from the treating doctor which explains the level of impairment the depression causes in the individual.



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Comparing SSI and SSDI Benefits

There are two programs under which the Social Security Administration (SSA) provides benefits to disabled individuals: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). SSDI is type of insurance available to disabled individuals who have paid into the Social Security trust fund during their past employment. SSI is designed to meet basic financial needs for disabled individuals with little or no income.

The disability requirement is the same for both SSI and SSDI benefits. To be disabled according to the SSA, a claimant must be unable to engage in “substantial gainful activity” due to a medical condition that is expected to last for at least 12 months or result in death.

To be eligible for SSDI benefits, the SSA requires you to have earned a specified number of work credits, depending on the age at which you became disabled. You can consult with your attorney or the SSA to determine if you qualify, but note that the work credit requirement is generally met if you have worked at least 5 out of the past 10 years. Eligibility for SSDI benefits also requires that you be a legal resident of the U.S., and below retirement age.

SSI eligibility requires you to meet the SSA’s financial need requirements. Specifically, income must be below the Federal Benefit Rate (FBR) of $674 per month for an individual and $1011 per month for a couple (although certain states increase these amounts). In addition, an individual must have less than $2000 in resources, and a couple less than $3000. Certain resources, such as your home and car, are not taken into account when making this determination. To receive SSI you must also be a U.S. citizen (with limited exceptions). Unlike SSDI, however, SSI is available to individuals over the age of 65.

The primary difference between the two programs concerns the technical requirements for eligibility, but there are other important differences as well. SSDI comes with Medicare, while SSI comes with Medicaid (or MediCal in California). There is a 2 year waiting period from the date of SSDI award payment for the Medicare benefit to begin, but Medicaid starts immediately upon award of SSI. Another difference involves auxiliary benefits; SSDI provides benefits to certain family members of the claimant, while SSI does not.

It is possible to have “concurrent entitlement,” and receive benefits under both programs. It is therefore recommended that you apply for both SSDI and SSI when filing a disability claim with the SSA.


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Reasons Why You May Not Get Social Security Supplemental (SSI) Benefits For Which You Are Otherwise Eligible

This article intends to help applicants avoid the pitfalls that cause their ineligibility for payment in spite of their qualifying disability. As codified by the Code of Federal Regulations, the following are the top reasons why applicants may not receive benefits in spite of their eligibility.

You do not give Social Security Administration (SSA) permission to contact financial institutions.

Because SSI is a need-based program, SSA must be able to determine your eligibility by reviewing financial information on your resources and assets. Therefore, upon application, you must authorize the SSA permission to review records from banks, credit cards, loan companies, trust companies, savings associations, and any other source that would reveal the current state of your financial status. Permission in certain circumstances may include access to financial information by other relevant persons, i.e. your spouse or others living in your household. Social Security disability attorney may help you navigate these rules. However, applicant for social security benefits should be prepared with bank records or other financial information to make available to your reviewer upon request. Requesting records beforehand can significantly reduce any delays on your payments.

You leave the United States.

Put simply, you lose your eligibility for SSI benefits for any month during all of which you are outside of the United States. If you are outside of the United States for 30 days or more in a row, you are not considered to be back in the United States until you are back for 30 days in a row. You may again be eligible for SSI benefits in the month in which the 30 days end if you continue to meet all other eligibility requirements (CFR 416.215). During the application process itself, you may be required to fill out supplemental information regarding your daily activities and medical treatment. If you are outside the United States you may miss an opportunity to respond to such inquiries and consequently be denied. While your social security attorney may help you keep abreast of any deadlines, your participation is still material to the outcome of your case.

You do not apply for other benefits.

If you do not apply for other benefits then you may be denied or your payments suspended. Other benefits include any payments for which you can apply that are available to you on an ongoing or one-time basis of a type that includes annuities, pensions, retirement benefits, or disability benefits. For example, "other benefits" includes veterans' compensation and pensions, workers' compensation payments, Social Security insurance benefits and unemployment insurance benefits (CFR 416.210). You may consult with your social security attorney to determine what types of benefits might be available to you. The most obvious, Social Security Disability Insurance (SSDI), can be available if you have earned enough work credits through your contributions. In these cases, Social Security disability insurance benefits may be higher and entitle you to Medicare versus the Medicaid provided by SSI.

You are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability.

Drug addiction and alcoholism are major impediment to your initial award of benefits. Most judges are very careful to evaluate whether the severity of your disability is a result of your addiction. In which case, judges may deny benefits based citing non-compliance with medical treatment. If you receive benefits because you are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability (CFR 416.935), you must avail yourself of any appropriate treatment for your drug addiction or alcoholism at an approved institution or facility when this treatment is available and make progress in your treatment. You are not eligible for SSI benefits beginning with the month after the month you are notified in writing that we determined that you have failed to comply with the treatment requirements. If your benefits are suspended because you failed to comply with treatment requirements, you will not be eligible to receive benefits until you have demonstrated compliance with treatment for a period of time. As a general rule, social security applicants that have not remained sober for a period of six months should be apprised of consequences related to their addiction. For more detail, such applicant should consult with a social security attorney.

Social Security application process is riddled with rules. Applicants should seek legal advice from a social security attorney before they proceed with an application.


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Rheumatoid Arthritis: How Will Social Security Administration Evaluate Your Disability Claim?

When applying for Social Security Disability benefits, it is imperative to be regular and consistent in the medical documentation of your case. A Social Security attorney may help guide as to how the information from your records translates to the criteria and evaluation of your condition by the Social Security Administration (SSA). This article will discuss the criteria that relates to Rheumatoid Arthritis.
Rheumatoid arthritis (RA) is a long-term disease that leads to inflammation of the joints and surrounding tissues. It can also affect other organs. RA usually affects joints on both sides of the body equally. Wrists, fingers, knees, feet, and ankles are the most commonly affected. The course and the severity of the illness can vary considerably.
Depending on the severity of your RA and how it specifically impairs your ability to work, you may be successful on your claim if you meet the criteria stipulated in the in Listing 14.09 of the SSA Listings of Impairments:
Inflammatory arthritis (14.09).
a. General. The spectrum of inflammatory arthritis includes a vast array of disorders that differ in cause, course, and outcome. Clinically, inflammation of major peripheral joints may be the dominant manifestation causing difficulties with ambulation or fine and gross movements; there may be joint pain, swelling, and tenderness. The arthritis may affect other joints, or cause less limitation in ambulation or the performance of fine and gross movements. However, in combination with extra-articular features, including constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss), inflammatory arthritis may result in an extreme limitation.
Barring the severe manifestations of your RA as described in the listing, your evaluator and Social Security Attorney may present at case based on how SSA evaluates pain and resulting limitations.
The Standard of "Pain"
In 1984, Congress passed the Social Security Disability Benefits Reform Act, which defined the standard of judgment on pain. It stated that:
…an individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged.
Though this act had an expiration date of 1986, it became the standard of judgment. In 1988, Social Security ruled there need not be objective evidence of the degree of pain.
Several factors are used in the standard judgment of pain including:
• the nature of the pain
• locations
• onset
• duration
• frequency
• radiation
• pain intensity

Other factors that must be considered in determining proof of pain include: what causes the pain and makes it worse name, dosage, effectiveness, and side effects of pain medications treatment for pain relief other than medications functional restrictions daily activities.
In order to get more personal advice on the merit and strength of your claim for Social Security Disability Benefits, please contact an experienced Social Security attorney.



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The Continuing Disability Review

Once you are receiving Social Security Disability benefits, the Social Security Administration will periodically review your case to make sure that you are still disabled. This review is called a Continuing Disability Review (CDR) and the law requires it . What can you expect from a CDR?
How often a case is reviewed varies from one disability case to another. When a person is found to be disabled, the disability determination specialist sets a date, called a diary, when the next review is scheduled to be performed. Most diaries are based on the expectation of recovery and are for three or seven years, but they can be sooner:
• If medical improvement is “expected”, a case normally will be reviewed within six to 18 months;
• If medical improvement is “possible”, a case normally will be reviewed no sooner than three years;
• If medical improvement is “not expected”, a case normally will be reviewed no sooner than seven years.
The CDR is a medical review. SSA is trying to decide if your level of disability has improved to the point where you have medically recovered and are able to work. The evidence that SSA will need for your CDR is similar to what it needed for your initial claim for Social Security Disability benefits. SSA will have you fill out forms describing your current condition and list all of the places where you have received treatment. SSA will also obtain copies of all recent medical records. If more information is needed about your condition, SSA may schedule a Consultative Exam. If your condition has not improved since SSA last reviewed your case, then your Social Security benefits will continue. If your condition has improved, SSA will look to see if your condition meets the current disability requirements.
It is important that when you receive the CDR notice and forms that you fill them out and return them. If you receive the CDR Mailer and throw it in the trash, SSA will send a second one. Continued failure to provide information that SSA asks for, or failure to attend an examination that it schedules, will result in termination of benefit payments. You may need help answering the questions, especially if you are not certain what is being asked and why. This is where an attorney may help.
Continuing Disability Reviews for Children
When a person is found to be disabled under childhood regulations, SSA will review the case when the person turns 18 to determine if the person is disabled under the adult regulations. The case is reviewed as if it were a new case. SSA is looking to see how your disability affects your ability to work as an adult. Even if your condition has not improved, your benefits will cease if your condition does not meet the current adult rules.
Tips for a Continuing Disability Review
SSA looks at the original status of your medical condition(s) and compares it to the current status of your medical condition(s) to decide if there has been significant medical improvement. For this reason, it is important that you continue to seek medical treatment for your condition. If you have not continued to seek medical treatment, SSA will likely order a Consultative Exam to assess your current condition. It is usually more beneficial


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Social Security Disability and Unemployment

To be eligible for Social Security Disability benefits, a claimant must not be able to return to past relevant work, nor to do any other work that exists in significant numbers in the national economy. A disability must last at least 12 months or be expected to result in death.

An application for Social Security Disability benefits is an affirmation of your belief that you are entitled to benefits under the above definitions – in other words, that you are not able to work. In signing your application, you affirm, under penalty of law, that you are making no false statements on your application.

Persons who apply for unemployment insurance must also affirm, under penalty of law, that they are making no false statements on their application. Persons who collect unemployment insurance affirm having looked for work each week, and that, if work was found, they would be ready, willing and able to accept it.

Furthermore, there is another fundamental difference between the two programs. State unemployment agencies expect you to look for work only in your field. They do not expect, for example, an accountant to accept work as a truck driver. But Social Security asks whether you can perform any work that is within your ability, regardless of the fact that you have never done it before. Collecting unemployment insurance may be an indication that you are only looking for work in your own field.

On the other hand, SSA recognizes unsuccessful work attempts. This is when a person tries to go back to work but their disability precludes a successful transition. So, for example, if the accountant, rather than collecting unemployment insurance, tried to take work as a cashier but found after a month or so that he just wasn’t able to do it because of his physical or mental limitations, it demonstrates a willingness to try to work at other jobs. Such unsuccessful work attempts tend to strengthen credibility and show you are not just trying to work the system.

In conclusion, an unemployment claim is tantamount to saying “I am able to work,” while an SSA disability claim is stating “I am not able to work.” Both statements are made under penalty of perjury, but both cannot be true, and it may affect your credibility in one or both forums.


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The Social Security Backlog

Recently, there has been a proliferation of articles concerning the growing backlog of Social Security Disability cases, and the regulations SSA Commissioner Michael J. Astrue proposes to address what is becoming an enormous hardship on disabled applicants. It is not unusual for applicants to wait more than three years to get a hearing.

Most often, these claimants have no savings, no income, and no insurance, even for necessary treatment or medications. Unfortunately, before their benefits are awarded, they lose their possessions, go bankrupt, their utilities are shut off, and ultimately are forced to move from their homes with no place else to go. In the worst cases, the claimant’s die.

Since the inception of the disability program in the 1950s, the standard for approval has been intentionally strict. It is designed more to weed out malingerers than it is to help the disabled. A claimant must prove either an illness expected to result in death or inability to do not only past work, but any work that exists “in significant numbers in the national economy.”

According to SSA, in January 2005 nearly 8 million disabled workers and their dependents received DI benefits, a 100% increase since 1985. Another 6 million adults and children receive SSI payments, a 135% increase in the same period.

Nationally, about 750,000 appeals are pending. That is double the number in 2000. The wait time varies by location, but the national average is 524 days. Many offices take much longer. In Omaha, for example, the average processing time is 639 days from date of appeal to the hearing level. Of the 143 hearing offices in the country, 22 have longer processing times.

In 2006, SSA implemented a new Administrative Review Process known as the Disability Service Improvement (DSI) process to address the backlog. Presently, Boston is the only region using the system. The new regulations provided that SSA would wait at least one year (from August 1, 2006) before implementing a second region.

The new rules include an initial application and review by a Federal reviewing official. The right to appeal to an ALJ remains intact. However, the judge’s decision is final unless the claim is referred to the Decision Review Board (DRB). A DRB review remains the final decision at the Administrative level. The Appeals Council will eventually be phased out.

Other changes include a new electronic filing system, presently in use in all 1,338 field offices, taking 20,000 claims per day. SSA is also implementing systems to streamline the updating of medical listings and to close the records in hearings faster by requiring all medical evidence to be submitted at least 5 days prior to hearing. The claimant is to be notified at least 75 days before the hearing, rather than the previous 20.

According to a recent article in The New York Times, about two-thirds of the 2.5 million disability applicants each year are denied at the initial state determination levels. Of the approximately 575,000, who file appeals requesting to be heard before an administrative law judge, about two-thirds win a reversal.

Reasons officials attribute to the high reversal rate include the supposition that many of the claimant’s impairments increase in severity by the time of hearing. The judge gets to meet the claimant face-to-face. The belief is that those who appeal are those with the strongest cases or who tend to get lawyers to help with presentation.


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The Possible Effect of Drug or Alcohol Abuse on a Disability Claim

Whenever a claim for Social Security Benefits under Title II or Title XVI is being evaluated, the Administrative Law Judge must be aware of possible “DAA” materiality on the claim. DAA stands for drug and alcohol abuse. Prior to 1996, a claimant could receive benefits based upon “DAA” (Drug Addiction or Alcoholism) with the conditions that benefits would be paid to a “representative payee” who would manage the funds, that the claimant enter a mandatory treatment program, and that their benefits would be limited to threes.


In 1996, however, Congress enacted the “Contract with America Advancement Act of 1996”, Public Law 104-121. Section 105 provides that "an individual shall not be considered to be disabled ... if alcoholism or drug addiction would ... be a contributing factor material to the Commissioner's determination that the individual is disabled."


The Social Security Administration has acknowledged that there are no exact criteria for when drug addiction and alcoholism are present. However, some courts have concluded that an actual diagnosis of a substance abuse disorder is not required, only that there is some evidence to support a finding of DAA.


The key factor Judges look to in determining whether drug addiction or alcoholism is a contributing factor material to the disability is whether the claimant would still be disabled if he or she stopped using drugs or alcohol. In making that determination, the Judge evaluates whether the claimant’s current physical or mental impairments would remain if the claimant stopped using drugs or alcohol and whether any of the remaining conditions would be disabling. If the impairments would still remain and would be disabling, then the DAA is not a contributing factor.


In order to be a contributing factor to the disability, however, the claimant must be currently abusing drugs or alcohol. The law does not apply to claimants who have stopped using drugs or alcohol. The Social Security Administration considers a one-month period of abstinence to be a sufficient period of time to observe whether the absence of drugs or alcohol has affected the claimant’s condition.


Credibility is always of major importance in disability cases, but it is especially important when a claimant states that the disability is independent of the drug or alcohol abuse. Judges often give great weight to the opinions of the claimant’s treating physicians in their determinations. Thus it is very important for claimants to be truthful about their drug or alcohol abuse. If a doctor feels that their patient is not being truthful, that opinion may appear in their treatment notes. And Judges will review those notes before the hearing. If a Judge suspects that the claimant has not been truthful in the past, the chances of being awarded disability benefits will be severely damaged.

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What are Representative Payees?

A relatively common scenario encountered by claimants is the situation where the claim has been awarded, but the claimant has been informed that he will not receive the funds directly. Instead, the funds will be distributed to a third-party “representative payee.” A representative payee is a person, agency, organization or institution that the Social Security Administration selects to manage a claimant’s funds when the claimant is determined to be incapable of doing so.


The first question the claimant will ask is, “why am I not receiving my funds directly?” The short answer is that they fall within one of the three categories of claimants the Social Security Administration has determined must have a representative payee. The first two categories are pretty straightforward and include most children under the age of 18 and legally incompetent adults.


The third and most common category though is anyone that Social Security determines to be incapable of managing or directing the management of his or her funds. Since a finding of disability is obviously a prerequisite to obtaining benefits under Social Security’s Disability and Supplemental Security Income programs, it stands to reason that a representative payee could be found necessary in all cases. Fortunately, the rules are not quite so liberal and the necessary finding that must be made before a payee is established is not an arbitrary process. There are strict standards in place requiring the Social Security Administration to evaluate medical or other types of evidence concerning the claimant’s ability to manage his benefits.


The next question becomes, “who may serve as a representative payee.” The answer is almost anyone. For example, a representative payee may be someone concerned about the claimant’s welfare (e.g. parent, spouse, guardian, friend), and an institution/entity, such as a nursing hone, nonprofit agency, or administrators at a homeless shelter. One of the few limitations is that the payee cannot be a convicted felon.


The payee does not have unlimited discretion in spending the funds. The payee must ascertain the needs of the claimant and use the benefits in his best interests. Funds must first be used for basic needs such as food, clothing and housing. The payee must also account for how the money is used each year.


Finally, either the claimant or the payee may request that the relationship be changed or terminated at any time. Upon receipt of the request, the Social Security Administration will investigate the situation and determine whether the request is appropriate.

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Residual Functional Capacity (RFC)

When a disability claimant’s impairments do not meet or equal a listing at step 3 of the sequential evaluation process, the Social Security Administration (SSA) is required to evaluate his or her residual functional capacity. SSA defines RFC as “what you can still do despite your limitations.” A Social Security Ruling (SSR) defines it as an assessment of an individual’s ability to do sustained work related physical and mental activities in a work setting eight hours per day, five days a week, or an equivalent schedule.

A claimant’s impairments and related symptoms affect ability to work. SSA evaluates all evidence of record to determine the “most you can do despite your limitations.” Typically, a claimant has completed certain forms which SSA has on file, describing his or her activities of daily living (ADLs). These forms ask questions about how a claimant spends an average day. Abilities: to cook, clean, do yard work, laundry, drive, mow the lawn, take trips, shop, watch movies, work on the computer; all give some indication as to whether those activities can be transferred to a work-like setting. So, for example, if a person states “I do nothing but sit and watch TV for 8 hours per day,” that is some indication, absent further explanation, that the person can sit and hold their head in a steady position for a full workday.

A claimant’s RFC comes into play at step 4 and, if necessary, at step 5 of the sequential evaluation process. At step 4, the question is whether the claimant can return to their past relevant work (PRW). Typically, a vocational expert is asked whether the claimant has the residual functional capacity to return to the type of work they have done in the past. If it is determined they do, the process stops, and a determination of “not disabled” is entered.

In making this determination, the adjudicator looks at the PRW as performed by the claimant, and as performed in the national economy. The Dictionary of Occupational Titles (DOT) is consulted for a definition of, among other things, the type of work performed, and exertional, and skill levels involved in performing the work. If it is determined that a person no longer retains the RFC to return to PRW, the evaluation is used again at step 5, to determine whether there are any jobs in the national economy the person can still do. If there are, the claimant is found “not disabled.”

Given the relative unlikelihood of meeting a listing at step 3, all claimants and their representatives should be prepared for this RFC assessment, in anticipation of steps 4 and 5 of the evaluation process. The importance of development of this aspect of a claimant’s case cannot be overestimated. A claimant should make every effort to obtain questionnaires tailored to their specific physical and mental impairments, and have them completed by their treating physicians. Claimants are often sent to consultative examiners (CEs) by SSA, for the purposes of obtaining just such a report. The CEs usually perform only cursory examinations, and generally determine that, with respect to ability to perform the 7 exertional functions (lifting, carrying, standing, walking, sitting, pushing, and pulling) a person is capable of at least sedentary, if not light work.
SSA has determined there are 1600 separate unskilled sedentary and light occupations in the national economy, most of which can be learned with a short demonstration in less than 30 days, and each of which represents hundreds of thousands of jobs across the nation. This represents a significant job base. It is therefore very important that a claimant be able to provide evidence from their treating physician to counter the RFC findings of the CEs.

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Acceptable Medical Sources: Who is considered acceptable and how are unacceptable medical sources treated?

When you apply for social security disability benefits, the Social Security Administration (SSA) uses medical and other evidence to determine whether an individual’s impairment(s) meet the SSA requirements for disability. When making a determination of disability, SSA will consider ALL available evidence in the individual’s case record. This includes medical evidence from acceptable medical sources, other evidence from medical sources, statements by the individual and others about the impairment(s), information from other non-medical sources and decisions by other governmental and nongovernmental agencies. However, not all forms of evidence are given the same weight by SSA when determining whether to award benefits.

Acceptable Medical Sources

SSA makes a distinction between acceptable medical sources and other health care providers who are not acceptable medical sources. Acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists and qualified speech-language pathologists.

Evidence from acceptable medical sources is needed to establish the existence of a medically determinable impairment. Acceptable medical sources can give medical evidence and can be considered treating sources whose medical opinions may be entitled to controlling weight. Only acceptable medical sources can give medical opinions, which are statements from an acceptable medical source that reflects judgments about the nature and severity of an individual’s impairment. This includes symptoms, diagnosis and prognosis, and what an individual can and cannot do despite their impairments.

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What to Expect at a Hearing for Disability Benefits

The hearing for disability benefits will take place as follows:

• The ALJ will start the record and go over preliminary issues such as swearing in all witnesses.

• The ALJ or your social security attorney will elicit your testimony, which will take up the bulk of the hearing. Whether or not it is the ALJ or your social security attorney depends on the ALJ’s preference. Your social security attorney will have an opportunity to ask you additional questions if necessary.

• If present, the ALJ will ask a medical expert to testify about the severity of your condition. Note that many hearings for disability benefits do not have medical experts. This is neither “good” nor “bad.” Often, it just has to do with the ALJ’s preference.

• If present, the ALJ will ask a vocational expert to classify your past work and whether he/she believes you are able to return to it or any other jobs that exist in the national economy. Again, whether or not a vocational expert is present likely has to do with the judge’s preference.

• The judge will close the hearing for disability benefits.

Your Testimony


Either the judge or your social security attorney will elicit your testimony at the hearing. For purposes of this analysis, we will assume the judge is the one asking the questions. The types of questions asked at your hearing will vary, but will fit into the following basic outline:


· Your basic information (age, living situation, etc).
· Your highest level of education
· Your work history over the last 15 years
· Your disabling conditions
· Your medical treatment/medications & side effects
· Your daily activities/how you spend your day
· Your RFC assessment


Your Work History


It is important to note you should be as accurate as possible in describing your past work. You need not know the name of each employer, or exact dates of employment. Further, if you had several jobs but all in the same line of work (i.e., customer service), it’s enough to say “I worked in customer service” for “x” amount of years.


What is especially important, however, is how you performed your jobs. Think of what level of exertion was needed to do your past work. Did you sit all day at your job? Or did you stand most of the day? Was a mix of standing and sitting required? Were you required to lift heavy objects? What was the heaviest object you were required to lift? Above all else, think about why you wouldn’t be able to return to these jobs. Then, think of the easiest job you ever had and why you wouldn’t be able to do that now. At your hearing, this is exactly what you will need to prove.


Remember, whether or not you are able to find work is irrelevant. The process the judge will use to determine whether you’re disabled asks only whether any jobs exist that you might be able to do after figuring in your age, education, and any skills earned from past work.


One final note on working: if you attempted to work at any time during the application process, please make sure to discuss the specifics of the work attempt with your social security attorney. He/she will need to know for how long you worked, how much you made at your job, and the general duties that were required in order to perform the work. Prepared with this information, your social security attorney will be able to advise you as to whether or not you have a viable claim, and if so, how to argue your case effectively.


Your Disabling Conditions


Don’t forget to describe to the ALJ all of your conditions. Describe symptoms in detail, i.e., where the pain is, what is feels like, how often you feel it, its level of intensity with and without medication, on good and bad days, and how many bad days you have in a month. If you have mental and physical conditions, take time to describe each. Don’t forget other non-exertional symptoms like fatigue, difficulty concentrating, poor memory, fear of dealing with the public, etc.


Above all else, your hearing is not a time to be brave. Many claimants are hesitant to talk about a condition that is embarrassing to them. Remember, the judge as well as your social security attorney and any experts in the room are accustomed to hearing this sort of testimony. Do not be ashamed if you become emotional. Claimants who do not get emotional when talking about things that are difficult may seem disingenuous. Your candor and emotional vulnerability will not hurt your claim. One of the main purposes of the hearing is to give the ALJ and opportunity to gauge whether or not you are telling the truth. Thus, providing the most candid and honest answers is of key importance.


Your Medical Treatment


The judge may ask questions about past surgeries, medical tests performed, specialists you’ve seen, physical therapy you’ve tried, whether you’ve been given a cane or walker to help you walk, etc. The judge will want to know what you’ve tried to do in order to get better. The judge will also want to know what medications you’re currently on, and possibly what others you’ve tried. Don’t forget to talk about side effects from your medications as they can be very important. For instance, if pain medication reduces your pain, but makes it so that you are very drowsy and can’t remember to do simple tasks, this is an important detail. It means, while you can do something to help improve your condition, doing so comes with its own repercussions that further affect your ability to function normally.

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